More than 70

attend state-ordered records training

AYER -- Public record law has existed since 1973, and the Secretary of State's Office promulgated its first, more specific regulations in 1982. Thirty years later, the same golden rule applies.

"Every government record is presumed to be public unless a specific exemption applies," said attorney Donald White of the Secretary's Public Records Law Division.

White addressed a gathering of more than 70 officials for state-ordered public records training for all Ayer officials. Also invited, but not mandated to attend, were Shirley and Ayer-Shirley Regional School District officials.

The state ordered training order was triggered by request for the release of personal and town emails between a Boston developer and two Ayer selectmen. Selectmen Gary Luca and Jim Fay initially answered that they had no such emails. Following state intervention, several emails were located in Luca's town account and released.

But Fay proclaimed that he routinely deleted all emails from his personal email account at a time the town was instituting town-issued email accounts for all town officials. Fay's email deletion practices were not singled out in the July determination letter issued by Shawn Williams, the Director of the Public Records Division.

However, Williams did order that all Ayer officials attend a mandatory public records training seminar. Williams did not answer Nashoba Publishing's question as to how many other cities or towns have likewise been ordered into community-wide records training.

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A public record is defined as "every document, paper, record, map, photograph, etc. as defined by law that is made or received by a government entity or employee" that relates to government business. That definition has grown to include all government records generated, received or maintained electronically, including computer records, electronic mail, video and audiotapes, text messages and social media posts.

Specific guidelines control when or whether a public record may ever be destroyed, or whether records can be electronically stored instead of stored in hard copy. White referred the crowd to review the state's 180-page municipal record retention manual for details.

Once requested, a record custodian has 10 calendar days to respond and answer whether or not the record will be provided along with a good faith estimate of the copy costs (the law suggests fees be waived). If denying the request, White said the custodian must cite exactly which "exemption" under the Public Record law shields the record (or a portion of a record) from release.

A requestor can appeal to the state, "then we make a determination and order release of records or defend an official's stance," said White.

The commonly cited 'Privacy Exemption' shields personnel and medical files from release where disclosure may constitute an unwarranted invasion of a personal privacy. White said the operative threshold test for that exemption is whether any material is "useful in making an employment decision" though sometimes review is needed "on a case by case basis."

Internal memos or letters relating to developing policy positions may be withheld under the Deliberative Process exemption until the matter at hand is concluded. Factual data used in the deliberative process, however, is not covered by the exemption and is to be released if requested.

Fay asked if a selectman's meeting notes are shielded. Maybe, answered White, if the deliberations are still afoot.

What about the records used during an open meeting, asked selectman Pauline Conley. The Open Meeting Law requires that records referenced in an open session be appended to the meeting minutes, which are subject to release.

They're subject to release, agreed White. However, some records will always be shielded, and closed-door meeting materials are not subject to release until the underlying purpose for the executive session has concluded.

White cited an example from another community, where a former town administrator refused to release his personal notes taken during a closed door meeting. "We found those were government records used by a government official at that meeting," said White. "The executive session [meeting] purpose expired and so those records were subject to disclosure."

Library Director Mary Anne Lucht pondered if notes jotted at home regarding a potential policy change must also be retained. "I can't throw them away?"

"Those notes relate to your work and your capacity with the town," said White. "So those would be presumed to be public."

"If they were part of an oral presentation to the board, you can argue your administrative need to retain them ceased," said White. "But if someone requested them, you'd be obligated to respond. So the presumption would be if it relates to your capacity as an employee, they're public."

Town Clerk and Tax Collector John Canney said sometimes records don't neatly fit into one of the defined categories in the records retention manual. White advised that the manual includes a catch-all "Records in Common" category but advised officials to make determinations "to the best of your ability."

Records voluntarily submitted to a government agency that contain financial or trade secrets may be withheld from release. Planning Board member and real estate developer Rick Roper asked whether a house plan submitted by a builder can therefore be shielded from release.

"Can someone come in to the Building Inspector's office and obtain it?" asked Roper. "The law doesn't talk about protecting my original design. It's damaging."

"If you're required to file that information in exchange for a permit, I'd argue that exemption doesn't apply," said White.

Bids and proposals can remain sealed until the time for bidding has expired, and then they are subject to release on request. This includes real estate appraisals on land being studied for public purchase, or records relating to litigation settlement talks.

The attorney-client privilege may protect release of town counsel's legal opinions. Selectman Frank Maxant asked if that's true when the board calls for the opinion during a public meeting.

"Any discussion would be reflected in the Open Meeting Law minutes," said White. But the legal opinion that later arrives from the attorney is likely protected "unless that privilege is waived."

Emails, text messages, social media posts can be public records

When used in conducting town business, emails, text messages and social media postings are public records - whether sent or received in an officials personal or official computer, phone, Facebook or Twitter account, etc.

It is incorrect to "think of emails differently," said White. "Our advise is those are treated the same as public records."

How long must email be retained, asked Town Accountant Lisa Gabree. See the records retention manual, said White. The town's website now contains a transparency "toolbox" with links to the manual and other state laws

If the town is now auto-archiving official email accounts, "When can I destroy my personal version of the email?" asked Fay.

"As I have said many times - do not delete any of these electronic records if you're doing it in the capacity of a public official on public matters," said Pontbriand. "As a general practice, you still should not delete them."

IT Coordinator Cindy Knox confirmed "once email is sent or received," the duplicate copy is stored automatically. "The employee needn't do anything."

Pending a different determination from the state, White advised attendees to 'keep that local copy as well, consistent with the records retention manual."

Finance Committee member Michael Pattenden sought clarification about personal email accounts. "Your personal emails are not public records unless it relates to town business," said White. Therefore, "using the town email account is a much more efficient process for you and the town."

When a request is made of an official's personal email account, "our expectation is you'd work with the town" to provide all the emails requested. "We do rely on the knowledge and the integrity of the public official to respond to public records requests."

Is it consistent with the law for the town to pass on a $250 fee when the auto-archive company charges for requests that take more than five hours to fill, asked Maxant. Maxant's repeatedly stated he fears the fee would have "a very chilling" effect on record requests.

White suggested "we'd want to know why there's a fee for emails that are even somewhat recent. We'd want to look at that on a case-by-case basis. If the requestor is being forced to pay a fee for records that should be readily accessible, we'd want to look to see if it's permissible or not."

Board of Assessors member Paul Bresnahan asked if personal phone records and text messages must be released. White circled back around to the recurring theme "does it relate to town business?"

Text messages and municipal cell phone bills "may be subject to disclosure," said White. Case in point- the release of Lt. Gov. Tim Murray's cell phone records following his crash of his state-issued car.

Conservation Commission member Jessica Gugino asked if officials must copy text messages from phones before retiring them. Yes, said White. Copy and paste them into emails, he suggested.

Zoning Board of Appeals member John Cadigan asked if a Google map he downloaded, or notes taken during a meeting to "keep track" of deliberations must be retained. See the manual, said White. "If what you say is reflected into the meeting minutes, then the administrative use of those notes may have ceased."

What of small boards with "no physical location" or staff, asked Gugino. "Coordinate with the town clerk to properly retain those records," said White. Pontbriand said he's the keeper of records for the selectmen and their appointed committees.

The Secretary of State's enforcement authority "is limited," admitted White. Despite a state order, an aggrieved requestor must plod onward to seek an enforcement order from either the Attorney General's Office or the Superior Court Department.

The Ayer selectmen are facing just such a challenge. The Secretary of State's Office has issued an opinion, ordering the town to turn over the electronic version of Assistant Treasurer Melisa Doig's town-issued email account. The town has refused. The requestor, Ayer Treasurer Stephanie Gintner, has filed suit in Lowell Superior Court seeking a court order for the record release.

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